Approximately seven months ago, the Supreme Court of Canada rendered its landmark decision in R. v. Jordan. In its reasons, the majority established a new framework for protecting the constitutionally guaranteed right to be tried within a reasonable time, under the Charter of Rights and Freedoms.

In the Jordan decision, the Supreme Court ruled on an issue that clearly needs to be addressed. Across the country, including Ontario, the pace of criminal justice is too slow. Criminal cases are taking too long to reach a conclusion. Systemic delays are eroding the public’s trust and confidence in the administration of justice.

Ontario shares the Supreme Court’s view that all parties in the justice system – including the bar, the courts, law enforcement and governments – can no longer conduct business as usual. It is time for reform. We must do everything possible to avoid stays of proceedings in criminal cases.

That is why, since Jordan, we have taken action in Ontario. We are making substantial new investments in additional provincial court judges, crown attorneys, court staff, legal aid and community supports, while strengthening day-to-day efforts to manage cases and complete trials. We’re pursuing broad procedural changes to make the system more efficient.

I am writing today because federal action is also needed. The federal government has an important role to play in meeting our constitutional obligation to deliver timely justice, including in the areas of judicial appointments, Criminal Code reform, and federal-provincial-territorial leadership. As Attorney General of Ontario, I have three specific requests for immediate federal action to help us collectively meet the Jordan challenge.

Fill Vacancies on the Superior Court of Justice

As you are aware, the Superior Court of Justice has been affected by a substantial number of unfilled judicial positions for a prolonged period of time. In Ontario, we currently have eleven judicial vacancies in the Superior Court, which includes seven positions in the Greater Toronto Area and three in Ottawa.

Ontario commends the federal government for the steps it has taken to restructure its judicial appointments approach. In addition to its other responsibilities, the Superior Court of Justice considers the most serious criminal cases in our system and, in this respect, it is essential that appointments are the result of a highly-independent and expert appointments process.

That said, Ontario is currently losing hundreds of hours of judicial time every month due to lingering vacancies on the Superior Court bench. In affected regions of our province, this is having a material impact on our ability to meet the Jordan challenge. We therefore request that you, as Minister of Justice, move as expeditiously as possible to fill these positions.

Reform the Criminal Code to Limit the Use of Preliminary Inquiries

As the Supreme Court made clear in the Jordan decision, the infusion of additional resources will not alone address all of the delay issues in the criminal justice system. We need to make bold changes to speed up and simplify the criminal court process.

Ontario believes that it is time for the federal government to introduce Criminal Code reforms aimed at substantially limiting the use of preliminary inquiries for all criminal cases, except for the most serious offences in the Criminal Code (i.e., section 469 offences).

Preliminary inquiries were originally put in place to test the sufficiency of charges and provide an ancillary discovery function. These historical rationales have diminished greatly given developments in criminal law and procedure. For example:

There are now more effective and efficient procedures in place to assess the sufficiency of charges, most notably a Crown screening standard that is higher than the preliminary inquiry test for committal. Crown screening standards are of course supported by stringent disclosure obligations and judicial pre-trial procedures that serve to flush out weak cases.

Since its ruling in R. v. Stinchcombe, [1991] 3 S.C.R. 326, the Supreme Court has said that the discovery function of a preliminary inquiry has “lost much of its relevance” (R. v. S.J.L. [2009] 1 S.C.R. 426 at para 23) and that holding a preliminary inquiry is not part of the Charter right to make full answer and defence (R. v. Bjelland, [2009] S.C.J. No. 38 at paras 32-36). Most recently in Jordan, the Supreme Court expressly indicated that Parliament may wish to reconsider the value of preliminary inquiries in light of the expanded disclosure obligation.

In recent months, Ontario has been conducting a detailed analysis regarding the effectiveness of preliminary inquiries in criminal cases destined for the Superior Court. We have found that the vast majority of preliminary inquiries result in the accused being committed to stand trial, yet this step in the process typically adds many months to the length of a criminal case. Ontario officials are currently in the process of completing a summary of our findings, which will be forwarded to you and our provincial and territorial counterparts at the earliest opportunity.

Special Meeting of Federal-Provincial-Territorial Justice Ministers

The Jordan decision is having a profound impact on the criminal justice system across Canada. In recent months, a growing number of cases have been affected in provinces and territories across the country, including some of the most serious cases in the system.

I am aware that many of our provincial and territorial colleagues have been taking their own steps to speed up the pace of criminal justice in their jurisdictions. Additionally, several provinces and territories have been considering additional proposals to amend the Criminal Code for the purpose of simplifying criminal court processes.

For these reasons, my final request is for you to convene a special one-day meeting of federal-provincial-territorial attorneys general to focus on the Jordan decision and consider additional steps that we can take to address this issue. Ontario will be pleased to host the meeting.

To close, I want to extend my appreciation for your commitment to federal-provincial-territorial partnership and collaboration since becoming federal Minister of Justice in 2015. I have every confidence that you share my determination to address the formidable challenge posed by the Jordan decision.

Thank you for your consideration of Ontario’s requests.

Sincerely,

Yasir Naqvi
Attorney General
c: Provincial and Territorial Attorneys General